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No. C-13-03052 DMR (N.D. Cal. Sep. 17, 2014)

No. C-13-03052 DMR




Pro se Plaintiff Theresa Mitford moves for summary judgment to reverse the Commissioner of the Social Security Administration's (the "Commissioner's") final administrative decision, which found Mitford not disabled and therefore denied her application for benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The Commissioner cross-moves to affirm. For the reasons stated below, the court denies Plaintiff's motion and grants the Commissioner's motion.

I. Procedural History

Plaintiff filed an application for Social Security disability insurance benefits on January 7, 2010, alleging a disability onset date of November 13, 2007. (A.R. 123-139.) She later amended her disability onset date to August 5, 2009. (See A.R. 38.) Her application was initially denied on May 27, 2010 (A.R. 71-74), and again on reconsideration on August 6, 2010 (A.R. 77-81). On September 21, 2010, Plaintiff filed a request for a hearing before an Administrative Law Judge (ALJ). (A.R. 91-92.)

After the November 30, 2011 hearing, ALJ Benjamin F. Parks issued a decision finding Plaintiff not disabled. (A.R. 21-27.) The ALJ determined that Plaintiff suffers from "chronic lower back pain with herniation and a variety of orthopedic complaints related to shoulders, feet and back; and allergies," which are severe impairments. (A.R. 23.) The ALJ found that Plaintiff has the following residual functional capacity (RFC) to perform "light work":

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except occasional stooping, crawling and bending, and avoid fumes, dust, and gases to the extreme.

(A.R. 24.) Relying on the opinion of a vocational expert who testified that Plaintiff could perform her past relevant work as a sales associate or interviewer, the ALJ concluded that Plaintiff is not disabled. (A.R. 27.)

Light work is defined in relevant part as follows: "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).

Plaintiff filed a request for review of the hearing on February 9, 2012 (A.R. 13-17), which the Appeals Council denied on February 20, 2013. (A.R. 6-12.) The ALJ's decision therefore became the final decision of the Commissioner. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff then filed suit in this court pursuant to 42 U.S.C. § 405(g).

II. Factual Background

A. Plaintiff's Background and Activities of Daily Living

The record contains the following information. Plaintiff was born in 1959. (A.R. 125.) In November 2007, she fell on a concrete floor and twisted her neck. (A.R. 37-38.) She continued working as a sales associate for a clothing retailer and was fired two weeks later. (A.R. 38, 39.) Her last day of work was November 28, 2007. (A.R. 160.) Prior to working as a sales associate, she spent three years working as a telemarketer/telephone interviewer. (A.R. 39-40.) At the hearing, Plaintiff described a number of medical conditions which she claims prevent her from working, including bulging discs that press on the nerve leading to the urinary tract, which affects her bladder; torn tendon on the left foot; neck and shoulder pain with spasms and pinched nerves; teeth pain from having teeth pulled; knee pain from failed foot surgery; skin rash; tinea; mitral valve prolapse; and allergies. (A.R. 40-44.) In response to the ALJ's questioning, Plaintiff stated that her "biggest problem" was the bulging discs in her back, and that she had experienced issues with her back since an accident in 1991. (A.R. 44.)

Plaintiff described the pain as "jolting" and constant, and stated that she cannot lift much and has to move slowly and methodically. (A.R. 45.) Sitting can aggravate the pain, while standing or lying down with her legs to her chest offers some relief. (A.R. 46.) According to Plaintiff, doctors prescribed physical therapy to treat her back, but she refused injections. (A.R. 44-45.) She has also refused pain medications, choosing instead to treat herself with herbal supplements and meditation. (A.R. 46, 51.) She stated that her back condition affects her bladder control but that she had refused medications for that. (A.R. 47.) Plaintiff also testified that after she fell in 2007, injuring her neck, her shoulder area became weak and in 2008 she "over-carried" some groceries and "pulled the whole shoulder out." (A.R. 50.) She was also prescribed physical therapy exercises to treat that issue. (A.R. 50.)

Plaintiff testified that she had surgery on her left foot in 1982 but that a tendon was cut and her foot never healed properly, and that her foot's condition has worsened with age. (A.R. 48.) According to Plaintiff, this causes problems standing, and she is unable to "really flex the foot." (A.R. 48-49.) Plaintiff also stated that she has allergies to "everything," including cleaning chemicals, such as Windex, perfumes, and cigarette smoke. She also stated that she has asthma. (A.R. 49-50.)

Plaintiff testified that due her medical conditions, she believes she can only lift five pounds, and is only able to walk or stand for an hour and a half to two hours in the course of an eight hour day. (A.R. 60; see also 160 ("Painful to stand longer than 5 minutes on flat floor . . . [and] on hard surfaces.").) She finds she gets distracted very easily by her pain, which she experiences all the time. (A.R. 61.)

Plaintiff testified about her daily activities. She wakes up, cares for her cat, listens to the radio and reads the newspaper. (A.R. 53.) She keeps a journal, and hopes to publish her writing one day. She also sews. (A.R. 53.) In January 2008, after losing her job and collecting unemployment, Plaintiff expressed an interest in becoming her sister's home health aide so she could pursue her writing interests. (A.R. 346.) Plaintiff is able to handle her own shopping, cooking, and cleaning, but is unable to vacuum as it throws out her back and neck. (A.R. 54.)

B. Plaintiff's Relevant Medical History

1. Dr. Sirisat Khalsa, M.D.

Dr. Sirisat Khalsa examined Plaintiff on January 14, 2010 for left arm pain and left foot problems. (A.R. 288-290.) He noted that her symptoms from the 2007 fall "wax[ed] and wane[d]," and that she was experiencing a lot of pain in her left arm after lifting and carrying a heavy backpack and groceries. (A.R. 288.) He noted that she worked in retail, but could not presently work and was collecting unemployment while writing a novel. (A.R. 288.) During his physical examination of Plaintiff, Dr. Khalsa noted that she exhibited poor posture with hunched shoulders, and that her bilateral trapezius was tender to palpation, although her neck was not tender. He also noted her poor effort in his attempts to ascertain the range of motion for her shoulder and "poor effort in terms of job test." He also stated that he was unable to examine her left shoulder "due to poor effort." (A.R. 290.) Dr. Khalsa noted that she had a hammer toe on her left foot. He had a long discussion with Plaintiff about the cause of her neck pain likely being the carrying of heavy items, and advised her not to do this. (A.R. 290.) He also noted that Plaintiff refused a prescription for Flexeril and that she had accepted a prescription for physical therapy but stated she would not go because of lack of money. (A.R. 290.) In addition, she accepted a podiatry referral but stated that she would not do any of the measures that might be recommended. (A.R. 290.)

2. Dr. Clark E. Gable, M.D.

Dr. Clark E. Gable performed an internal medicine examination of Plaintiff on April 19, 2010. (A.R. 305-07.) As part of the examination, he reviewed Plaintiff's medical records, including notes regarding a 2002 MRI, which indicated "moderate stenosis on the right foraminal area" "with an SI nerve root displacement," and noted that Plaintiff has "a long history of low back pain." (A.R. 305 (quoting A.R. 432 (Sept. 29, 2002 MRI).) However, Dr. Gable noted that she did not mention the low back pain at the beginning of her examination and stated "those were not major problems today." (A.R. 305.) He observed that Plaintiff's chief complaints were "problem with left leg and left leg from an injury." (A.R. 305.) Plaintiff described bilateral bunionectomies on her feet in 1981, and reported that she continued to have significant pain in her left foot which "compromised her walk." (A.R. 305.) However, her gait was relatively normal, and he found that what she indicated on her foot was "simply redundant flesh, without any real evidence of effusion." (A.R. 305, 307.) Plaintiff "claim[ed] pain radiating into the medial aspect of the left knee with swelling," stating these problems were "difficult and somewhat incapacitating," but that she was not taking any pain medications. (A.R. 305.) Plaintiff also reported pain in her left shoulder with a decrease in motion which she felt was an acute shoulder injury, but Dr. Gable reported that it was "now improving on its own without evaluation." (A.R. 305.) The range of motion in her left shoulder "appear[ed] to be diminished, but not severely so" on the date of the examination. (A.R. 305.) In addition, Plaintiff complained of considerable neck pain in January 2010 which Dr. Gable noted "was not a major problem currently." (A.R. 305.) Plaintiff also complained of sensitivity to odors. (A.R. 305.)

Dr. Gable noted that Plaintiff got on and off the table "with relative ease." (A.R. 306.) Plaintiff's range of motion about her neck and right upper extremity was normal, but she had some tenderness in the left shoulder, which she claimed was getting better. (A.R. 306.) Her grip strength was "excellent." (A.R. 306.) In her lower extremities, Dr. Gable observed that Plaintiff could flex both knees without crepitation, straight leg raising was negative, and there was no significant tenderness or spasm in the lumbar area. (A.R. 306-07.)

Dr. Gable indicated that although there was evidence of nerve impingement on Plaintiff's lower back, there was no evidence of significant radiculopathy. (A.R. 306.) He also diagnosed her left shoulder problem as either a bicipital tendinitis or a rotator cuff tear, which was "improving spontaneously." (A.R. 306.) In his opinion, Plaintiff could sit up to six hours per day with breaks, and could stand and walk up to six hours. He also opined that Plaintiff could lift 20 pounds frequently and 40 pounds occasionally, and that he could see no problems with fine finger and hand movements. (A.R. 306.)

3. Drs. L. VanCompernolle, M.D. and S. Mathur, M.D.

The record contains opinions by reviewing physicians L. VanCompernolle, M.D. (A.R. 309-314) and S. Mathur, MD (319-321). On May 13, 2010, Dr. VanCompernolle reviewed the medical record evidence and concluded that Plaintiff would be precluded from "heavy work." (A.R. 310.) In making this assessment, Dr. VanCompernolle noted that while Plaintiff complained of neck and lower back pain, which she claimed was affecting her bladder function, her back/neck exam was normal. Further, she had only taken over the counter medications in the past and was currently taking no medications. (A.R. 310.) Dr. VanCompernolle noted that Plaintiff's complaints "seem[ed] quite out of sync" with the medical evidence in the record. (A.R. 311.) On August 4, 2010, Dr. Mathur reviewed the record and affirmed Dr. VanCompernolle's assessment. (A.R. 320.)

"Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds." 20 C.F.R. § 404.1567(d).

4. Family Nurse Practitioner Sandra C. Prentice

Family Nurse Practitioner (FNP) Sandra Prentice treated Plaintiff at the Glide Health Clinic ("Glide") for a variety of complaints, including neck pain after the 2007 fall, tooth pain starting in June 2009, and lower back pain in February 2011. (A.R. 364, 382-413.) Prentice completed a Functional Capacity Evaluation dated November 14, 2011. (A.R. 422-26.) In the evaluation, Prentice opined that Plaintiff could not reasonably be expected to sustain eight hours of work a day. (A.R. 422.) She found that in an eight-hour workday, Plaintiff could sit for one hour, and could stand and walk for less than one hour, and that she would need to be able to change positions at will. (A.R. 423.) Prentice opined that in a competitive work situation, Plaintiff would be able to sit, walk, and stand for less than five minutes before needing to change position, and that she would need to lie down to rest or relieve pain for ten to fifteen minutes at least three times per hour. (A.R. 423.) According to Prentice, Plaintiff could lift or carry up to ten pounds occasionally, or up to one-third of a workday, but could not lift or carry more than ten pounds at all. (A.R. 424.) Prentice opined that Plaintiff's combination of impairments would "continuously" interfere with attention and concentration and her ability to perform sustained and competitive work, where "continuously" was defined as two-thirds of the workday or more. (A.R. 425.) Prentice concluded the evaluation by stating her opinion that Plaintiff is incapable of "low stress" jobs, and that "she does not have 'good' days." (A.R. 426.)

III. Issues Presented

Plaintiff argues that the ALJ improperly assigned more weight to consultative examiner Dr. Gable than to her treating nurse practitioner, Sandra Prentice, and that the ALJ's assessment of her RFC did not consider several of her alleged health conditions. (Pl.'s Mot. 2-6.) In addition, Plaintiff repeats some of her testimony regarding her chronic pain symptoms, and although it is not clearly stated, Plaintiff challenges the ALJ's decision to discount her testimony as not credible. (See generally Pl.'s Mot.) Therefore, the three issues presented are: 1. Whether the ALJ improperly rejected the credibility of Plaintiff's allegations; 2. Whether the ALJ erred in rejecting the opinion of Plaintiff's treating nurse practitioner; and 3. Whether the ALJ erred in determining her RFC by failing to consider all of her health conditions.

IV. Standard of Review

Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. The ALJ's underlying determination "will be disturbed only if it is not supported by substantial evidence or it is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (internal quotation marks omitted). "Substantial evidence" is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" but less than a preponderance. Id. When performing this analysis, the court must "consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted).

If the evidence reasonably could support two conclusions, the court "may not substitute its judgment for that of the Commissioner" and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, resolving ambiguities, and drawing inferences logically flowing from the evidence. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982); Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). "Finally, the court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).

V. Discussion

A. Plaintiff's Credibility

In her motion, Plaintiff describes the chronic pain she suffers as a result of her back condition, deformed feet, and recent teeth extraction as a result of her teeth cracking. (Pl.'s Mot. 2-6.) At the hearing, Plaintiff testified that she feels pain "all the time." (A.R. 61.) The ALJ concluded that Plaintiff was not credible because her testimony was "not supported, vague and inconsistent with" objective findings, her complaints were "inconsistent with signs and findings," and her treatment was "conservative and non-aggressive." (A.R. 26.)

1. Legal Standard

In general, credibility determinations are the province of the ALJ. "It is the ALJ's role to resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the ALJ's conclusion must be upheld." Allen v. Sec'y of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984). An ALJ is not "required to believe every allegation of disabling pain" or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989) (citing 42 U.S.C. § 423(d)(5) (A)). Nevertheless, the ALJ's credibility determinations "must be supported by specific, cogent reasons." Reddick, 157 F.3d at 722 (citation omitted). If an ALJ discredits a claimant's subjective symptom testimony, the ALJ must articulate specific reasons for doing so. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). In evaluating a claimant's credibility, the ALJ cannot rely on general findings, but "must specifically identify what testimony is credible and what evidence undermines the claimant's complaints." Id. at 972 (quotations omitted); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (ALJ must articulate reasons that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony."). The ALJ may consider "ordinary techniques of credibility evaluation," including the claimant's reputation for truthfulness and inconsistencies in testimony, and may also consider a claimant's daily activities, and "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The determination of whether or not to accept a claimant's testimony regarding subjective symptoms requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281 (citations omitted). First, the ALJ must determine whether or not there is a medically determinable impairment that reasonably could be expected to cause the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony as to the severity of symptoms "based solely on a lack of objective medical evidence to fully corroborate the alleged severity of" the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991) (en banc) (citations omitted). Absent affirmative evidence that the claimant is malingering, the ALJ must provide specific "clear and convincing" reasons for rejecting the claimant's testimony. Smolen, 80 F.3d at 1283-84.

The ALJ did not conclude that plaintiff was a malingerer.

2. Analysis

Here, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with" the ALJ's RFC assessment. (A.R. 24.) The ALJ carefully considered the evidence for making this determination, and gave several reasons for failing to fully credit Plaintiff's testimony. First, the ALJ noted that the objective evidence, including treatment notes and a November 2007 MRI, did not confirm Plaintiff's limitations. (A.R. 24-25.) On November 21, 2007, she presented at Glide with a complaint of neck pain with pain and swelling to the right elbow. She used ice which resolved her complaints, but the neck pain returned. There was palpable tension to the right upper trapezius areas, which were tender to touch, as well as pain at the left rotating flexior. However, there were no spinal abnormalities noted. She was instructed to apply ice or heat and use ibuprofen for pain. (A.R. 343.) Plaintiff underwent an MRI on November 27, 2007, which indicated grade 1 retrolisthesis of C2 on C3, with no acute bony injury and no prevertebral soft tissue swelling. (A.R. 434.) That same day, she complained that she was still very stiff in her back/neck area. She reported that she was unable to move and that the pain was so severe she could not sleep. Plaintiff was advised to stretch and rest, and to follow up with physical therapy if the pain did not improve in two weeks. (A.R. 344-45.)

The records show her next appointment at Glide was in July 2008, and was a follow up about a skin rash. There were no notes about Plaintiff's back or neck pain. (A.R. 348.) In September 2008, treatment notes indicate that Plaintiff had "[y]ears of [lower back pain] '2 bulging discs,'" but that she had stopped exercises that were helping and the practitioner, FNP Prentice, wrote "not sure why she stopped." (A.R. 411.) Plaintiff also indicated that pain was not affecting her activity level. (A.R. 411.) In June 2009, Plaintiff presented with tooth pain into her ear and complained of being weak and dizzy. She stated that she had been unable to eat for months due to carious teeth, and had been unable to work due to her dental pain and weakness. (A.R. 404.) The examination showed multiple rotten teeth, receding gums, and carious teeth. (A.R. 405.) She stated that she had a dental appointment scheduled for that week, and was prescribed nutritional supplements. (A.R. 405.) On January 14, 2010, the same day Plaintiff was examined by Dr. Khalsa, she presented at Glide with a six-week history of mild left shoulder pain which had been aggravated by lifting heavy grocery bags. (A.R. 399.) She stated she was unable to move the shoulder due to pain, but denied back pain, muscle cramps or weakness, stiffness, and arthritis. (A.R. 399-400.) The examination showed her left shoulder was mildly swollen with a notable deformity of protrusion of soft tissue anteriorly and tender to palpation, and no active range of motion. (A.R. 400.) However, the examiner also noted "normal alignment and mobility" in her head, neck, spine, ribs, and pelvis. (A.R. 400.) Plaintiff reported not taking any medication for the pain. (A.R. 399.) She was directed to take ibuprofen and referred to San Francisco General Hospital Urgent Care for further evaluation. (A.R. 401.)

On November 30, 2010, her chief complaint was "discomfort" in her lower back on the right side, which she rated a 10 on the pain scale, although she said it was improving. (A.R. 393.) However, she stated that she was able to walk/move around without difficulty. (A.R. 393.) Prentice again noted multiple rotten teeth, receding gums, and carious teeth. (A.R. 395.) She was directed to take ibuprofen. (A.R. 394, 396.) Plaintiff began physical therapy for her back in December 2010 (A.R. 444-50), and in February 2011, Plaintiff informed Prentice that she had gone to physical therapy for her lower back pain and experienced "great relief!!" (A.R. 388; see also A.R. 449 (physical therapy record noting 0/10 on the pain scale).) Plaintiff indicated that pain was not affecting her activity level and that there was no pain for her provider to address. (A.R. 388.) Although the examination revealed Plaintiff's ongoing teeth problems, Prentice noted that her gait and station was normal and there was normal alignment and mobility in the head, neck, spine, ribs, and pelvis. (A.R. 390.) In addition, she had a full range of motion in her neck. (A.R. 390.) Prentice also noted that Plaintiff "[g]en[erally] feels well." (A.R. 389.) In the final set of treatment notes, from June 8, 2011, Plaintiff presented with discomfort in her eye. (A.R. 381.) She indicated that the pain in her lower back was a three on the pain scale, but there were no findings or recommendations by Prentice regarding this complaint. (A.R. 381.)

The court finds that substantial evidence underlies the ALJ's finding that the extreme pain described by Plaintiff was not supported by the objective findings in the record. The two MRIs in the record do not indicate severe abnormalities, and the treatment notes show that Plaintiff's back pain waxed and waned, as noted by Dr. Khalsa. By June 2011, it appeared that Plaintiff was managing her pain without significant intervention. While subjective pain testimony cannot be rejected solely because it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of Plaintiff's pain and its disabling effects. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Moreover, the ALJ gave a number of other reasons for discounting Plaintiff's testimony. He noted that Plaintiff's treatment was "conservative and non-aggressive," consisting primarily of being directed to take ibuprofen for pain, and that she had refused to take medication for her back and feet pain and bladder issues. (A.R. 26; see A.R. 46, 51, 333, 335, 337, 343, 369.) This suggests that Plaintiff's symptoms may not have been as serious as she alleged. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that an ALJ may consider lack of treatment in making credibility determination); see also Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (observing that claimant's physical ailments were treated with over-the-counter pain medication, noting that "evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of impairment"); Johnson v. Shalala, 60 F.3d 1428, 1434 (holding that ALJ may properly rely on the fact that only conservative treatment had been prescribed). He also noted that Plaintiff had reported being on unemployment and sought to look into becoming a home health aide so she could pursue her writing interests. (A.R. 26, 346.) "[R]eceipt of unemployment benefits can undermine a claimant's alleged inability to work fulltime." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008).

The ALJ considered all of the above factors in concluding that Plaintiff's testimony was not credible. The court finds that the ALJ provided clear and convincing reasons for his decision, which were supported by substantial evidence.

B. Evaluation of Medical Evidence Regarding Plaintiff's RFC

The ALJ determined that Plaintiff is able to perform "light work" as defined in 20 CFR § 404.1567(b) "except occasional stooping, crawling and bending," and that she should "avoid fumes, dust, and gases to the extreme." (A.R. 24.) In determining Plaintiff's RFC, the ALJ relied upon the opinions of the State psychiatric and medical consultants, assigning "significant weight" to their opinions, and stating that he gave the most weight to consulting physician Dr. Gable because he had examined Plaintiff. (A.R. 26.) He gave "less weight" to the opinion of FNP Prentice, who assessed significant restrictions and opined that Plaintiff could not reasonably be expected to sustain eight hours of work per day. (A.R. 26-27, 422.) Plaintiff argues that the ALJ erred in giving Dr. Gable's opinion significant weight and that he should have afforded greater weight to the opinion of treating FNP Prentice. (Pl.'s Mot. 2-3.)

Plaintiff does not challenge the ALJ's determination that she has no medically determinable mental impairments. (See A.R. 26.)

Plaintiff challenges Dr. Gable's opinion that she could sit, stand, and walk up to six hours a day and lift 20 pounds frequently and 40 pounds occasionally (A.R. 307), asserting that she felt "uncomfortable and humiliated" being examined by a male doctor who was a stranger. (Pl.'s Mot. 2.) She also claims that Dr. Gable failed "to inquire in depth" as to her medical history and did not see the results of her "MRI results of [her] spine," but still "confidently made a five minute decision that [Plaintiff] could lift 30-50 pounds." (Pl.'s Mot. 3.) While the court is sensitive to Plaintiff's complaints of discomfort during the examination, it notes that contrary to Plaintiff's assertion, Dr. Gable noted that he had reviewed Plaintiff's medical records, including the results of the 2002 MRI. (A.R. 305.) He noted that the conditions reflected in the MRI, moderate stenosis and nerve root displacement, "were not major problems today." (A.R. 305.) The record contains the results from a second MRI performed on November 27, 2007, which show grade 1 retrolisthesis, with no acute bony injury and no prevertebral soft tissue swelling. (A.R. 434.) It is not clear whether Dr. Gable reviewed this information, as he did not mention it in his opinion; however, he noted that Plaintiff did not mention low back pain at the beginning of the evaluation and that her chief complaint was an injury to her left leg. (A.R. 305.) His other observations were unexceptional. Plaintiff got on and off the exam table "with relative ease," her straight leg raise was negative, and her gait was "relatively normal." (A.R. 306-07.) While Plaintiff claimed some tenderness in her shoulder, she claimed it was getting better. Her grip strength was "excellent." (A.R. 306.) Further, as to her left foot, he found that there was no significant tenderness over the prominent areas on her big toes and no swelling in her extremities. (A.R. 306.)

In disability benefits cases, the Social Security Administration requires "evidence from acceptable medical sources to establish whether [a claimant] [has] a medically determinable impairment(s)." 20 C.F.R. § 404.1513(a). "Acceptable medical sources" include licensed physicians, psychologists, optometrists, podiatrists, and qualified speech-language pathologists. See id. "[P]hysicians may render medical, clinical opinions or they may render opinions on the ultimate issue of disability--the claimant's ability to perform work." Reddick, 157 F.3d at 725 (citation omitted). The Social Security Act tasks the ALJ with determining credibility of medical testimony and resolving conflicting evidence and ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). An opinion that is more consistent with the record as a whole generally carries more persuasiveness. See 20 C.F.R. § 416.927(d)(4).

Here, the only conflicting medical opinions about Plaintiff's functional abilities concern the amount of weight Plaintiff could lift and carry. Dr. Gable opined that Plaintiff could lift 20 pounds frequently, while reviewing physicians Drs. VanCompernolle and Mathur each opined that Plaintiff should only be precluded from "heavy" work, meaning she could perform "medium" work, lifting no more than 50 pounds at a time with frequent lifting or carrying of objects up to 25 pounds. See 20 C.F.R. § 404.1567(c). Based upon his review of the entire record, the ALJ resolved this conflict in Plaintiff's favor, ultimately concluding that Plaintiff was capable of performing only "light work," which "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds," 20 C.F.R. § 404.1567(b). (A.R. 24.) Although FNP Prentice's opinion contradicted the opinions of Drs. Gable, VanCompernolle, and Mathur regarding Plaintiff's ability to work, a nurse practitioner is not an "acceptable medical source" and cannot give a medical opinion. See 20 C.F.R. § 404.1513. Because Dr. Gable's opinion "rests on his own independent examination of [Plaintiff]," his opinion alone constitutes substantial evidence supporting the ALJ's findings regarding Plaintiff's exertional limitations. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

As to treating FNP Prentice, Plaintiff argues that her opinion supports Plaintiff's disability claim. Plaintiff reiterates her testimony about the chronic pain she experiences, and essentially argues that Prentice's opinion that Plaintiff is "not able to be employed" should have been assigned controlling weight. (See Pl.'s Mot. 2-3.) The ALJ assigned Prentice's assessment less weight because she is a nurse practitioner and not a medical doctor. (A.R. 26-27.) As noted, a nurse practitioner is not an "acceptable medical source" and cannot give a medical opinion or be considered a treating source whose opinion may be entitled to controlling weight. See 20 C.F.R. § 404.1513 (listing acceptable medical sources); SSR 06-03, 2006 WL 2329939, at *2 ("only 'acceptable medical sources' can be considered treating sources . . . whose medical opinions may be entitled to controlling weight."). However, Prentice qualifies as an "other source" who can provide evidence about the severity of Plaintiff's impairments and how they affect her ability to function. See 20 C.F.R. § 404.1513(d); see also Garrison v. Colvin, --F.3d--, 2014 WL 3397218, at *15 (9th Cir. July 14, 2014) (finding that nurse practitioners qualify as "other sources").

"The ALJ may discount testimony from "other sources" if the ALJ 'gives reasons germane to each witness for doing so.'" Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Here, the ALJ specifically discounted Prentice's assessment on the grounds that she is not a medical doctor and that the determination of disability is an issue reserved to the Commissioner. (A.R. 27.) In addition, immediately following his summary of Prentice's opinion, he noted that there were several reasons to conclude that Plaintiff was able to work despite Prentice's assessment, such as a lack of objective findings and treatment for the extreme pain described by Plaintiff, Plaintiff's interest in becoming a home health aide so that she could pursue her writing interests, and Plaintiff's lack of credibility, as discussed above. (A.R 26; see also A.R. 27.) The court finds that the ALJ did not err in discounting the "other source" evidence from Prentice. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (finding that an ALJ's reasons for rejecting claimant's credibility equally germane to similar testimony by lay witness).

C. The ALJ Properly Evaluated all of Plaintiff's Medically Determinable Impairments

Finally, Plaintiff argues that the ALJ erred by not including the following impairments in his determination of her RFC: Ehlers-Danlos Syndrome, mitral valve prolapse, deformed feet, and tooth pain with accompanying nerve damage. (Pl.'s Mot. 3-6.)

1. Legal Standard

At step two of the five-step sequential evaluation for disability claims, the ALJ must determine whether the claimant has one or more severe impairments that significantly limit a claimant's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c); 416.920(a)(4)(ii) and (c). In addition, when assessing a claimant's RFC, an ALJ must consider all of the claimant's medically determinable impairments, both severe and non-severe. 20 C.F.R. §§ 416.920(e), 416.945; see Howard v. Barnhart, 341 F.3d 1006, 1010 (9th Cir. 2003); see also SSR 96-8p, 1996 WL 374184, at *5 ("In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments [because] limitations due to such a 'not severe' impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do.").

2. Analysis

a. Ehlers-Danlos Syndrome

In her motion, Plaintiff alleges that she was born with Ehlers-Danlos Syndrome (EDS), a connective tissue disorder, and that she was diagnosed with EDS in 2013. (Pl.'s Mot. 3-4.) However, the record does not contain evidence of this diagnosis. "A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a claimant's] statement of symptoms." 20 C.F.R. § 404.1508. Further, Plaintiff's 2013 diagnosis with EDS was more than a year after the ALJ's December 22, 2011 decision, (A.R. 27), and therefore outside the time frame under consideration. See 20 C.F.R. § 404.970(b) ("If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision."). Finally, the 2013 diagnosis occurred after Plaintiff was last insured for disability benefits on December 31, 2012. (A.R. 23, 130.) To be entitled to disability insurance benefits, a claimant must establish that her disability began on or prior to her insurance expiration date. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). Therefore, the ALJ did not err in omitting EDS from his analysis.

b. Mitral Valve Prolapse

Plaintiff next alleges that she suffers from mitral valve prolapse, which is a symptom of EDS, and that the condition causes dizziness and fainting. As a result of mitral valve prolapse, she must "avoid injury by not participating in high-impact activity, maintain a well-balanced diet, prevent falls, use utensils with wide handles [and] jar openers to avoid extra tension to the joints, and use mild soap." (Pl.'s Mot. 4.) The record shows that Plaintiff was diagnosed with this condition in 2000, (A.R. 288, 429), but there is no evidence that Plaintiff had any complaints which physicians associated with the condition, nor was any treatment offered. Diagnosis alone does not speak to the severity of any associated limitations, and it does not appear that Plaintiff's ability to work was significantly impacted by this condition as she continued to work for seven years after her diagnosis. (See A.R. 136.) Moreover, when Dr. Gable evaluated Plaintiff, she did not report that mitral valve prolapse was an issue and he observed no cardiac abnormalities. (A.R. 305.) Her blood pressure was 110/60, she had no murmurs or gallops, and her peripheral pulses were strong and bilaterally equal. (A.R. 306.) The court finds the ALJ did not err in omitting mitral valve prolapse from his analysis of Plaintiff's RFC.

c. Foot Deformities

Plaintiff asserts that she has "deformed feet that make it difficult and painful to stand for long periods of time." (Pl.'s Mot. 5.) The ALJ explicitly considered Plaintiff's foot impairments and found her "orthopedic complaints related to . . . feet" to be severe at step two of the sequential analysis. (A.R. 23.) However, the objective medical evidence does not support Plaintiff's assertions of debilitating limitations. Dr. Gable examined Plaintiff's feet, noting that she had well-healed scars from bunionectomies in 1981, and that she reported continuing pain in her left foot which had compromised her walk. (A.R. 305-06.) He concluded that the area that she indicated "was simply redundant flesh, without any real evidence of effusion." (A.R. 305.) He also noted that while Plaintiff had "very prominent areas," there was no significant tenderness in those areas and no swelling in her extremities. (A.R. 306.) Dr. Gable also observed no antalgic gait. (A.R. 307.)

Further, in January 2010, Dr. Khalsa examined her, in part, for left foot pain. (A.R. 288-90.) He diagnosed her with hammer toe and offered a podiatry referral, but Plaintiff told him that she would not do any of the measures that might be recommended, suggesting her foot pain was not as debilitating as Plaintiff claims. (A.R. 290.) See Burch, 400 F.3d at 681 (holding that an ALJ may consider lack of treatment in making credibility determination). The court finds that the ALJ did not err in omitting restrictions related to Plaintiff's feet in determining her RFC.

d. Tooth Pain

Finally, Plaintiff alleges that in 2005, her teeth began cracking, and in 2013, she had six teeth extracted. (Pl.'s Mot. 5.) According to Plaintiff, when she had the bottom teeth removed in 2011, she experienced "permanent sub-lingual nerve damage to [her] chin and jaw," and now speaks with a lisp and spits. (Pl.'s Mot. 5-6.)

The ALJ took Plaintiff's complaints of tooth and face pain and carious teeth into consideration. (A.R. 25.) However, the evidence did not support further limitations than those the ALJ found. Treatment records from Glide indicate that Plaintiff first sought treatment for her tooth pain in June 2009, when she complained of weakness and dizziness related to the pain. (A.R. 404.) However, at her April 2010 examination with Dr. Gable, he noted that she had several missing molars but that this was not one of her chief complaints. (A.R. 305-06.) Subsequent treatment records indicate she complained of pain related to her teeth on at least three other occasions, (A.R. 389-90, 395-96, 381); however, at the administrative hearing, Plaintiff testified that she was not taking medication for any of her conditions, including her teeth. (A.R. 47.) In her motion, Plaintiff indicates that she is now only using ibuprofen for the pain, which is fairly conservative treatment. (Pl.'s Mot. 6.) See Johnson, 60 F.3d at 1434. Further, the record contains no evidence of nerve damage resulting from the 2011 extractions. The court finds no error with respect to the ALJ's determination of Plaintiff's RFC.

VI. Conclusion

For the above reasons, the court denies Plaintiff's motion for summary judgment and grants the Commissioner's motion for summary judgment.

IT IS SO ORDERED. Dated: September 17, 2014



United States Magistrate Judge